ON APPEAL FROM THE ADMINISTRATIVE COURT
Vincent Fraser QC (deputy judge)
CO 1118 2010
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
SIR STEPHEN SEDLEY
| NA (IRAN)
|- and -
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
Jason Beer QC (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 20 July 2011
Crown Copyright ©
Sir Stephen Sedley:
"… any asylum claim by these claimants is to be made in Latvia. There is no reason, medical or otherwise, why they should not be returned there…"
He classified the claim as wholly without merit.
"16. Ms Arzane, on the evidence that is before me, will receive proper treatment and support in this country, there is nothing to suggest that anything will happen other than that, and during her removal and the receiving authorities in Latvia will be notified about her condition, which they are able to address and obliged to address and provide her with suitable treatment and support. In addition, of course, her husband is in Latvia. He has been there for some five months approximately and that is important not only because he is there and available to provide support, but also, as was observed by the Secretary of State, there is no indication by way of any further communication from him to suggest that there is in fact any problem in Latvia with the way he is treated or the way his wife and child can be expected to be treated.
17. I am satisfied that removal in this case is in accordance with the principles established in J, Tozlukaya and KH (Afghanistan). I have also considered very carefully the interests of Ms Arzane's daughter, which are, as was quite properly pointed out to me, a primary consideration in this matter.
18. The general interests of the daughter are addressed in the UK Border Agency's letter of 13th October of this year, where essentially the point is made that, given the child's age, her best interests are to remain with her mother, which in turn will lead to her also joining her father and that must be in her best interests."
"The issue here is whether there would be a substantial danger of a breach of the applicant's article 3 rights, and in consequence a breach of the child's article 8 part 3 rights by reason of the death or serious disability of her mother, if the applicant were removed to Latvia. At his paragraph 6 the judge accepted in terms the opinion of Dr Yagoub that the stress of forced removal would make it likely that the applicant would act on her suicidal ideation. The judge dismisses that danger on the basis of (i) assurances by the Secretary of State that the removal would take place under safe conditions; (ii) assumptions, set out in paragraphs 15-16 and 19 of the judgment, about the availability of medical care in Latvia. As to (i), first no detailed programme is offered by the Secretary of State, and second Dr Yagoub's concern was not limited to events on the journey. Possible stress-induced events in Latvia itself cannot be covered by any arrangements made by the Secretary of State. As to (ii) there appears to be no evidence at all as to the state of medical treatment in Latvia. The judge, at his paragraph 15, appears to have confused the question of whether Latvia is prepared to attempt to comply with its Convention obligations with the question of whether health provision in Latvia makes it possible or likely that the condition identified by Dr Yagoub will be properly treated and controlled.
The present issues
"4. As the Appellant is receiving treatment from a hospital, a risk assessment will be undertaken by the medical practitioner who is responsible for her care prior to her removal to Latvia. UKBA staff will seek to keep in contact with the medical staff in order to have an up-to-date account of what the Appellant's medications are, when and how they are to be taken and who is allowed to administer these medications. It is very common for a person who is due to be removed from the United Kingdom prior to removal to state that they have an alleged medical condition. The UKBA is well experienced in dealing with such removals and has set policy on how to handle these kinds of removal. The Appellant is receiving medical treatment and she will be dealt with in accordance with that policy. The UKBA will also ensure that a "Fit to fly" certificate is obtained prior to removal taking place. The "Fit to Fly" certificate is a medical report compiled by a doctor who will deem the subject as fit to fly prior to removal."
Law and policy
"55 Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that –
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services proved by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are –
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c) any general customs function of the Secretary of State;
(d) any customs function conferred on a designated customs official.
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)"